How the Cosby case causes evidentiary rifts in common sense

Evidence is not what you think, it's what the Judge thinks!

Everyone was shocked at the outcome of the Bill Cosby sexual assault case in Pennsylvania earlier in the week. Not just because a Hollywood Icon was found to have committed a crime years ago that no one believed occurred, but that this seemingly generous, munificent social benefactor could actually have been found guilty of committing this crime.

What is truly important here is not whether you believe these crimes actually occurred, but the way the jury came to its conclusion of guilt. I learned many years ago when I first started practicing law that evidence can be twisted and maneuvered in a way that can set a guilty person free or convict a totally innocent individual. Frankly, my opinion as to whether or not Dr. Cosby actually committed this crime or others is irrelevant. My sole concern is how evidence that was allowed in front of the Pennsylvania jury sealed the deal for the State.

When a criminal defense attorney takes on a sexual assault case it is extremely important that every available use of evidence be availed. Obviously, the prosecution feels the same way and will take advantage of every possible bit of evidence that points to guilt. But what happens when the prosecution is allowed to introduce into evidence material that has nothing to do with the crime in question, but merely past crimes or other "bad acts"? That is what occurred in this case.

The Rules of Evidence shape the outline of the case

The Federal rules of evidence are a misty mirror of most state rules across the country. In the Pennsylvania case the hearsay rules and the prior bad acts rules are very similar to the Federal rules of evidence. The same applies to the state of Maryland regarding any courtroom drama.

Federal rule 404, Character evidence; Crimes or other acts, specifically prohibits evidence of a person's character or trait to prove that on a particular occasion the defendant or other person acted in accordance with some character or trait. There are exceptions to this rule such as the ability to rebut evidence put forth by a particular defendant, or a defendant may offer evidence that their particular trait is paramount and should be exhibited to the jury.

Maryland rule 5–404, Character evidence is not admissible to prove conduct; exceptions; other crimes. This rule demonstrably prohibits evidence of a person's character or character trait to prove that the person acted in accordance with the character or trait in a particular situation. However, there are exceptions. Subject to certain limitations such as the rape shield statute, an accused may offer evidence of a victim's pertinent trait or character if allowed into evidence. Additionally, although generally other crimes, wrongs or acts are not admissible, such evidence may be admissible for other purposes such as proof of motive, opportunity, intent, preparation, common scheme or plan, knowledge, identity, or absence of mistake or accident. What we are really focused on in this situation is the common scheme or plan.

In essence, what the Pennsylvania court did was allow five other women to testify that Dr. Cosby used a similar common scheme or plan to sexually assault them just like he allegedly did to the victim in question. Important to understand is the distinction between allowing past victims to testify solely because they allege they were assaulted by Dr. Cosby. That is not allowed under the rules. What is allowed is the allegation that Dr. Cosby used drugs or other methodology to formulate a common scheme or plan to sexually assault the other 5 women. The court basically found that the allegations by the other five women were so similar that the propensity for bias vs. the commonality to the other crimes outweighed any harm to the defendant. In other words, the court was convinced that because he [Dr. Cosby] used the same or similar methods with the other women the jury had a right to hear that these past crimes also occurred.

Allowing Prior "Bad Acts" evidence is very dangerous

This is extremely dangerous territory for any court to step into. There is no doubt in my mind that the courts ruling by allowing the testimony of these other women tipped the evidentiary scale in favor of the state. The minute the judge allowed those other women to testify and tell their story the case was really over for Dr. Cosby. It's almost impossible to come back and try to show that all those other women were also lying.

The problem with allowing this type of testimony in these cases is that it opens the door for other issues to influence a jury about a particular situation when it really is not proper to do so. To allow other individuals to testify about their own situation to influence a jury about a particular occasion is extremely treacherous. In essence, the judge announced Dr. Cosby's guilty long before the jury did because this evidence was allowed.

In Dr. Cosby's case the situation was extreme because you had Five [potentially more] other women who testified about a similarly situated act. In many other sex offense cases it's not so pronounced. For example, there may be one other individual who makes an allegation that the defendant assaulted him or her sexually in a similarly situated matter. The courts should be very reluctant to allow that type of evidence to be introduced unless the evidence is overwhelming. In Dr. Cosby's case the court believed that the fact that there were multiple other women who claimed that he used the same exact or similar plan and executed it in the same way, tipped the legal scales.

This is where the legal fight begins and ends in many sex offense cases. When you have a victim who is claiming that a sexual assault occurred, many times it becomes that person's word against a defendant's. Of course there are many other factors that come into play such as factual evidence and other testimony. In today's society, text messages, video, social media and other electronic evidence can be very fruitful for the state and sometimes the defense.

Inevitably an Appeal

The bottom line is that when fighting these charges your lawyer needs to be extremely experienced in understanding the potentiality of allowing past bad acts or other evidence to get before a potential jury. A skilled defense attorney will object on the record as to anything allowed in this realm by the judge so that an appeal may be set up for a later time down the road.

These issues are not always just used against a potential defendant. A skilled criminal defense attorney who cross-examines an alleged victim about an alleged sexual assault will sometimes use past history or prior bad acts against that person. The Maryland rape shield statute prohibits much of that, but not all. There are exceptions to the case.

Think about the deep well that a jury must dive into when trying to decide these situations. If a jury is able to hear about prior bad acts of the defendant, why can't you hear about a potential promiscuous sexual history of an alleged victim? Especially if the issue is consent. As many lawyers say, "it all depends"!

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